The Milwaukee Deputy Sheriffs' Association and Milwaukee County are parties to a
collective bargaining agreement which provides for final and binding arbitration of disputes
arising
there-under. The Association made a request, in which the County concurred, for the
Wisconsin
Employment Relations Commission to designate a member of its staff to hear and decide a
grievance
concerning the meaning and application of the terms of the agreement relating to the
imposition of
discipline. The Commission appointed Stuart D. Levitan to serve as the impartial arbitrator.
Hearing
in the matter was held in Milwaukee, Wisconsin, on August 26, 2010. The parties
filed written
arguments by November 2, 2010, and waived their right to file replies.

ISSUE

The parties stipulated the issue as:

"Was there just cause to suspend Sgt. Martin Ewert for ten days? If not, what is the
appropriate remedy?"

(l) Refusing or failing to comply with departmental work
rules, policies,
procedures

(u) Substandard or careless job performance

BACKGROUND

Martin J. Ewert joined the Milwaukee County Sheriff's Office (MCSO) as a Deputy
on
February 25, 1994. On January 4, 2009, he was given a temporary assignment to the higher
classification of Sergeant. In January 2010, he was formally promoted to Sergeant, assigned
to the
third shift. This grievance challenges discipline he received for actions he took shortly after
his
promotion, by which he helped another MCSO Sergeant harvest a large deer from a roadway
within
the City of Milwaukee. Pursuant to Milwaukee County Sheriff's Office Rules, deer hit within
Milwaukee city limits are the responsibility of the Milwaukee Police Department (MPD), not
the
MCSO.

On February 9, 2010, MCSO Internal Affairs Division Lieutenant James Cox
submitted the
following Investigative Summary:

On January 20, 2010, Airport Division Captain Sylvia Rodriguez submitted an
Investigation Authorization Request into the alleged workplace violations of Sergeant
Philip Wenzel. After initial investigation by the Internal Affairs Division,
Communications Dispatcher Mark DeStefanis and Sergeant Martin Ewert were
included as subjects in the case. It is alleged that on-duty Sergeant Wentzel obtained
a deer carcass for his personal use. Sgt. Ewert and Dispatcher Mark DeStefanis
assisted in the acquisition of the deer and coordinated the incident utilizing agency
resources. The Transportation Security Administration also leveled a complaint
relative to Wentzel's handling of a "suspicious person" report at the time of the deer
incident. Inspector Kevin Carr authorized an Internal Affairs Division investigation
into the matter.

Internal Affairs Division Lieutenant James Cox conducted this investigation and
factually established the following:

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On January 12, 2010, at approximately 0424 hours, the MCSO Communications
Division began receiving 911 emergency calls relative to a "huge deer" struck by a
vehicle near 107th and Bradley Road in the city of Milwaukee. The 911 call
of the
driver of the vehicle that struck the deer was transferred to the Milwaukee Police
Department Communications Center for handling as a "property damage only" call.

At approximately 0500 hours, MCSO Dispatcher Mark DeStefanis noted that the
Milwaukee Police Department had not yet responded to the scene and the Sheriff's
Office was still receiving 911 calls regarding the large "ten point" deer. According to
a Communications Division recorded call, DeStefanis proceeded to contact his
brother, an off-duty MPD officer, and tell him about the large animal and the potential
for deer meat. DeStefanis offered to dispatch an MCSO squad to standby until his
brother arrived. The brother refused the offer.

At 0504 hours, DeStefanis contacted Patrol Division Sergeant Martin Ewert and he
asked, "Anyone looking for venison?" DeStefanis informed Ewert that the call was
"not ours (MCSO) it's Milwaukee's (MPD)." Ewert suggested that DeStefanis
contact on-duty Airport Sergeant Wentzel, who is known throughout the agency as
an avid outdoorsman. During the discussion, there is no reference to traffic-related
concerns or exigent safety-related issues.

Dispatcher DeStefanis did not contact Milwaukee Police Department
Communications Center for the purpose of expediting their response to the 911 deer
calls.

At 0506 hours, DeStefanis contact Airport Division Sergeant Philip Wentzel and he
also offered the suggestion of obtaining deer meat. Wentzel is initially hesitant due to
the logistical problem of him not bringing his personal truck to work. He decided to
utilize an Airport Division sport utility vehicle to obtain the deer. Wentzel directed
DeStefanis, "if you have a squad that could at least go and sit with it until I get there."
After authorization from Patrol Division Sergeant Ewert, DeStefanis dispatched an
Institutions Division squad (Deputy Sarah Michalski ­ Squad 451) to
107th and
Bradley Road to "sit" with the deer until the arrival of Sergeant Wentzel from the
airport. At approximately 0532 hours, Institutions Squad 451 arrived on the scene.

At 0517 hours, DeStefanis contacted the MPD Communications Center. The MPD
Dispatcher told DeStefanis that they have assigned a squad to respond for the deer.
DeStefanis told the dispatcher, "we would like to take" the deer carcass and he
informed them that a MCSO sergeant is en route. DeStefanis stated, "we can tag it
and take it." DeStefanis informed the MPD Dispatcher that Wentzel can dispatch the
deer if necessary. MPD Dispatcher informed

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DeStefanis that she will relay the information to their responding squad. At 0522
hours, according to MPD call records, prior to the arrival of the Institutions Division
squad, MPD Squad #4320 arrived on the scene.

At approximately 0540 hours, Sgt. Wentzel left the airport in an agency unmarked
squad (Ford Expedition) for the purpose of dispatching and retrieving the deer carcass
for his own personal gain.

Shortly thereafter, Sgt. Wentzel arrived at the Patrol Division Substation where he
was greeted by Sgt. Ewert. Dispatcher DeStefanis assisted in the coordination of the
collection of agency emergency blankets. Ewert provided Wentzel with agency-issued
emergency blankets (Patrol Division stock) for the purpose of protecting his squad
from the remnants of the deer carcass. Ewert had information to believe that Wentzel
was utilizing the blankets for his personal acquisition of the deer. During his Internal
Affairs Division interview, Ewert stated, in retrospect he should not have provided
the emergency blankets to Sergeant Wentzel and he should have pulled Deputy
Michalski from the scene.

At approximately 0625 hours, Sgt. Wentzel and Deputy Michalski loaded the deer
carcass into the agency SUV. Wentzel "tagged" the deer with an Airport Division-supplied
Department of Natural Resources permit. At this time, Michalski went back
to her Institutions assignment and Sergeant Wentzel drove to his Franklin home
residence to unload the deer. At approximately 0655 hours, he returned to the Airport
Division to complete his shift.

During his Internal Affairs Division interview, Ewert stated he did not completely
monitor the radio transmissions relative to the deer response of Deputy Michalski or
the Communications Division calls. He asserted if it were necessary for Michalski to
dispatch the deer, per policy, he would have expected a cell phone call or direct radio
contact for his approval. He did not note that the Milwaukee Police Department, with
primary jurisdictional responsibility, had arrived on the scene. Ewert proclaimed that
if he would have heard the radio transmission indicating MPD had arrived on the
scene he would have pulled Michalski and returned her to her regular Institutions
assignment. Ewert never gave direction to Dispatcher DeStefanis to "have MPD step
it up" when he was initially told of their slow response.

Ewert remarked that in hindsight he would have "asked more questions" and get
more
information before he authorized the use of Patrol Division resources. He stated he
understood the conflict of interest concerns relative to an on-duty sergeant obtaining
a deer carcass in an agency vehicle. Ewert concluded his Internal Affairs interview by
stating, "There were definitely some errors on my part."

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Based on the aforementioned, I respectfully propose a disposition of
SUSTAINEDfor the following Milwaukee County Sheriff's Office and Milwaukee County
Civil
Service rule violations:

(l) Refusing or failing to comply with departmental work
rules, policies,
procedures

(u) Substandard or careless job performance

On February 22, 2010, Sheriff David A. Clarke approved a ten-day disciplinary
suspension
for Ewert, which he ordered to be read at roll calls. Sgt. Ewert served his suspension March
30-April
8, 2010.

In August 1994 Ewert was issued a written reprimand for violating policy regarding
firearms
and credentials. That action was sustained. In October 1995, then-Sheriff Richard Artison
brought
a complaint against him concerning domestic violence. That complaint was reviewed and
closed. In
December 1995, a compliant was brought that Ewert violated policy and Civil Service Rule
VII (4)(l)
regarding use of force. That charge was not sustained. In February 1997, a complaint was
brought
about an unspecified violation of policy. That charge was not sustained.

The Association filed a timely grievance, which it subsequently advanced to
arbitration.

POSITIONS OF THE PARTIES

In support of its position that the grievance should be sustained, the Association
asserts and
avers as follows:

Because Ewert's actions were neither inefficient nor incompetent, the Sheriff did not
have just cause to suspend him. DeStefanis requested Ewert to send a squad to the
scene at around 0515-0520 hours because Milwaukee Police had not yet responded
to the 911 calls, and Ewert had safety concerns about the deer

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remaining in the roadway. When Ewert gave DeStefanis authorization to dispatch
Michalski to the scene, he was unaware that MPD had also dispatched a squad. Ewert
did not hear the radio transmission dispatching the MPD squad because it happened
around 0600, when shifts were changing and he was very busy. The other sergeant did
not hear the transmission either.

The fact that Michalski was at the scene and assisted Wentzel did not make the
department any less efficient or competent. Deputies are frequently pulled from
Institutions to assist with highway accidents and arrests, almost on a daily basis. The
county offered absolutely no evidence that Institutions was inefficient because
Michalski was not there.

The county is wrong to content Ewert should have somehow stopped Wentzel from
harvesting the deer. First, he did not know Wentzel was on duty; he arrived at the
substation about 0600, and was only there for 10-30 seconds. It was dark, and
Wentzel was in an unmarked undercover Ford Expedition, which is not a vehicle
typically used for undercover work. It had no lights on top or inside the vehicle, and
no markings that Ewert noticed that would make him think the vehicle was a
Department vehicle. Also, as both Ewert and Wentzel are sergeants, Ewert did not
have authority over what Wentzel does on duty. Also, he thought Wentzel was off
duty, on personal time.

In addition to there being no evidence the Department was inefficient as a result of
Ewert's actions, Ewert complied with all departmental rules, policies and procedures.
He performed his duties as a temporary sergeant at or above the necessary standard.
None of the deputies in his bureau complained about his performance.

Even if it is determined that just cause supports one or more rule violations, just
cause
does not support the level of discipline imposed. Ewert has an impeccable discipline
record, having never been disciplined since joining the department in 1994. He is a
good worker, as evidenced by his promotion to temporary sergeant in January 2009.
he did not assist Wentzel in obtaining the deer, he did not leave his patrol assignment
or lend Wentzel his squad vehicle. He simply gave Wentzel two disposable blankets
worth about $8 each. Association president Felber testified he had never seen anyone
suspended for ten days for giving another sergeant $16 in disposable blankets. Further
demonstrating the lack of just cause, the investigating lieutenant could not answer the
question whether the Sheriff would have doubled the punishment if Ewert had given
Wentzel four blankets instead of two. The discipline is simply not just.

The department could have addressed this incident through a verbal counseling
session, verbal warning, written warning or any other way that was just. To suspend
Ewert for his actions in this incident runs counter to the basic principle that employees
are entitled to know in advance what is expected of them.

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The county submitted no evidence that proves the Sheriff's discipline was appropriate
given Ewert's previous discipline history and the facts of this incident. The discipline
should be rescinded in its entirety, or in the alternative reduced to an appropriate level
given Ewert's history and limited involvement in this incident.

In support of its position that the grievance should be denied, the County asserts and
avers
as follows:

Sgt. Ewert assisted in contacting Sgt. Wentzel, used Sheriff's personnel to secure the
deer inside Milwaukee city limits, and facilitated the misappropriation of county
property to help Sgt. Wentzel obtain and transport the deer. The taking of the deer
violated office policy and all notions of professionalism, especially Ewert's improper
and unprofessional dispatching of a deputy to secure the deer. He violated rules and
procedures when he allowed office personnel to participate in the recovery of the deer
while on duty. Withdrawing Michalski from her assignment at Institutions was clear
evidence of a lack of efficiency and competence and a substandard or careless job
performance because he should have returned her to her assigned sector once MPD
arrived.

Sgt. Ewert further violated VII sec 4(1)(l) when he allowed Michalski to have
jurisdiction over an MPD accident scene. He admitted he did not monitor the situation
closely enough to discern MPD had arrived on the scene; sending a deputy to secure
a city accident scene is not a violation until the deputy fails to relinquish control to
city police, but Sgt. Ewert dispatched Michalski without orders to so relinquish. Then
he failed to monitor the situation knowing it potentially violated jurisdiction. His
actions and inattention led to a violation of jurisdiction. His failure to monitor the
situation is also evidence of lack of efficiency and competence and a substandard job
performance, and his failure to recall Michalski was both inefficient and careless.

DISCUSSION

The basic facts of what occurred on the early morning of January 12, 2010 are not in
dispute.
Sgt. Martin Ewert directed Communications Dispatcher Mark DeStefanis to dispatch Deputy
Sarah
Michalski from her Institutions Division post to a location within the City of Milwaukee, to
safeguard
a large deer that had been hit by a car, until Sergeant Philip Wentzel could arrive to harvest
it. Ewert
also provided Wentzel with Sheriff's Office property, namely two emergency blankets, to
assist in the
transportation of the carcass.

The Association asserts that in so doing, Ewert did nothing wrong. I emphatically
reject this
notion. Indeed, according to the investigative report and the sworn testimony of Internal
Affairs Lt.
James Cox, Ewert himself acknowledged during the investigation that he had made several
errors.
He was right.

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Ewert should not have suggested that DeStefanis contact Wentzel about the deer. He
should
have directed DeStefanis to contact MPD about expediting their handling of the deer. He
should not
have authorized DeStefanis to dispatch Michalski to watch over the deer until Wentzel
arrived.
Having authorized DeStefanis to do so, Ewert should have directed Michalski to relinquish
jurisdiction upon the arrival of the Milwaukee Police Department. Having failed to do that,
Ewert
should have monitored the radio, so he was aware when MPD arrived. (1)

The Association defends the dispatching of Michalski on two grounds ­ that
deputies at
Institutions are routinely assigned to help with matters off-site and that nothing untoward
happened
in the time she was away. Both these defenses fail.

First, deputies at Institutions are frequently assigned off-site to handle traffic
accidents
or
other matters within county jurisdiction. But Michalski was not assigned for
a legitimate public safety
need within county jurisdiction ­ she was assigned to watch over an injured deer on a
street within
the City of Milwaukee until Wentzel could come to harvest it. As Ewert fully knew, official
protocols
establish that deer struck within city limits are the city's responsibility, not the county's.
Although
DeStefanis first brought the issue to Ewert's attention because a half-hour had passed with no
response by MPD, the record evidence and testimony establishes that Ewert's motivation in
sending
Michalski was to watch over the deer until Wentzel's arrival, not to advance public safety. In
that
regard, it is noteworthy that when Ewert gave Wentzel the departmental blankets to help
transport
the carcass, he did not say, "thanks for going out of your way to protect highway safety,"
but rather,
"save me some meat."

Second, I do not subscribe to the notion, "no harm, no foul." It is indeed fortunate
that
Michalski was not needed at Institutions during the time she was away; but forgiving the
improper
assignment because nothing bad happened is akin to not ticketing a drunk driver who makes
it home
safely.

Ewert should also not have provided Wentzel with departmental property, the two
emergency
blankets, to assist in transporting the carcass. The fact that they were only valued at $8.00
each is not
the critical consideration. What is more important is that they were the property of the
Sheriff's
Office, to be used only for official business. Lt. Cox's inability to answer definitively
whether
misappropriating four blankets would have led the Sheriff to double the punishment that he
imposed
on Ewert for misappropriating two blankets does not bear on the propriety of Ewert's
actions.

I do not understand the Association's argument that Ewert should be excused for
providing
the emergency blankets because he didn't know that Wentzel was driving a department
vehicle. Ewert
maintains he was unaware that Wentzel was driving a department vehicle, a purple Ford
Expedition,
because it did not have police lights on top or inside.

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However, as the photographs that comprise Joint Exhibit 6 clearly show, the vehicle
Wentzel was
driving bore an "Official" license plate featuring a five-point star. Ewert says he didn't notice
this
because it was dark, and his encounter with Wentzel lasted only a few seconds.

Ewert testified that Wentzel called ahead and asked for blankets to assist in
transporting the
carcass, and Ewert assumed Wentzel would be off duty and in a personal vehicle. "If he had
come
in a squad car," Ewert testified, "that would have raised a red flag, and I would not have
just handed
him the blankets and turned around." I do not understand this testimony at all. How could it
have
been improper for Ewert to give Wentzel the blankets if Wentzel were driving a department
vehicle,
but not improper if he were driving a personal car?

Directing a deputy be dispatched from her assignment to watch over an injured deer
within
the city limits is inefficient. Failing to take any steps to ensure that the deputy relinquish
jurisdiction
upon the arrival of MPD betrays a lack of competence and is a substandard and/or careless
job
performance. Providing departmental resources for an unofficial, private purpose is clearly
wrong.
A properly trained Milwaukee Deputy Sheriff should have known all this.

Having established that there was just cause to discipline Ewert, I turn to the question
of
whether the Sheriff had just cause to suspend him for ten days.

Unless specifically barred by the collective bargaining agreement, an arbitrator may
consider
the level of discipline in determining just cause. Inland Container Corp., 91 LA 544, 548
(Howell,
1988). Discipline may be found to be excessive "if it is disproportionate to the degree of the
offense,
if it is out of step with the principles of progressive discipline, if it is punitive rather than
corrective,
or if mitigating circumstances were ignored." Discipline and Discharge in Arbitration,
Brand,
ed., BNA Books, 1998, p. 85.

An employee's prior disciplinary record can be an important consideration in
evaluating the
level of discipline. How Arbitration Works, Ruben, ed., BNA
Books 2003, p. 983. Here, Ewert has
a good record; he had been with the Sheriff's Office for a month shy of 16 years when this
incident
occurred. In that time, although several complaints had been raised, the only one sustained
was a
written reprimand regarding firearms and credentials; the county has not challenged the
association's
assertion that written reprimands "are not considered discipline." While I think the
association
overstates matters when it describes Ewert as having "an impeccable discipline record," his
record
certainly is a positive one, and of fairly long tenure.

An employee's attitude is also important in evaluating the level of discipline. A
sincere
acknowledgement by the employee that s/he had done something wrong may lead to leniency,
while
a refusal to accept responsibility would not. Will-son Corp., 108 LA 920, 924 (Nadlebach,
1997)
Ewert acknowledged to IAD Investigator Lt. Cox that he should not have provided Wentzel
with the
emergency blankets, and should have pulled Michalski from the scene. "There were
definitely some
errors on my part," he concluded. I agree.

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Another important factor in assessing the appropriateness of a particular discipline is
its
comparison to other situations. Here, the record does not contain information on what, if
any,
discipline Wentzel received, or what other ten-day suspensions the Sheriff has imposed. It is
the
employer's burden to establish all the elements of just cause being present for discipline.

At the time of the incident, Ewert was a 16-year employee with one written
reprimand on his
record. He acknowledged to Internal Affairs that he had done things wrong. There is nothing
in the
record against which to evaluate this degree of discipline.

The purpose of discipline is to correct employee behavior. Discipline which is
punitive rather
than corrective may be found to be excessive. Given Ewert's record, his acknowledgement of
error,
and the lack of any record evidence regarding other ten-day suspensions, I believe a ten-day
suspension crossed the line from corrective to punitive.

Accordingly, on the basis of the collective bargaining agreement, the record evidence
and the
arguments of the parties, it is my

AWARD

That the grievance is denied in part and sustained in part. There was just cause to
suspend
Sgt. Ewert for five days. The ten-day suspension is modified to a five-day suspension. The
grievant
shall be made whole for lost wages and benefits.

Dated at Madison, Wisconsin, this 28th day of January, 2011.

Stuart D. Levitan, Arbitrator

SDL/gjc

7686

1The Association's
explanation for why Ewert was not aware of MPD's arrival was that it happened "about 6:00
am,"
when Ewert would have been busy with tasks related to the shift change. However,
according to the Investigative
Summary, an MPD squad actually arrived at 0522 hours ­ ten minutes before
Michalski even arrived.